We originally posted the Hot Air report to YouTube on May 2. On May 3, after we publicized the video on nationally syndicated radio host Laura Ingraham’s program, YouTube yanked the video and replaced it with the following notice:

UMG claimed our video podcast infringed its copyrights and had submitted a takedown notice under the Digital Millennium Copyright Act (DMCA), pressuring YouTube to pull the episode down. We concluded that this was a clear attempt to suppress the report by abusing the DMCA.

This content has been restored and your account will not be penalized.

Sincerely,

Jacob
The YouTube Team

Translation: “Neeever mind.” UMG’s Emily Litella moment is as clear a concession as any that our report was, in fact, fair use–and that UMG’s use of the DMCA to try and stifle it was, in fact, abuse.

But the shenanigans didn’t end there. After receiving the notification from YouTube that the video would be restored, we discovered a new message in place of the video. YouTube claimed that our Akon report now violated its “terms of use.” (Where have we heard that before?) EFF’s senior staff attorney, Kurt Opsahl, pressed YouTube for an explanation. On Friday, after Opsahl took the matter to one of Google/YouTube’s in-house counsels, YouTube reinstated the video–over-ruling the prior terms of use decision.

San Francisco – Universal Music Group (UMG) has backed off of its attempt to silence nationally syndicated columnist Michelle Malkin’s online criticism of one of its controversial artists after Malkin fought back with the help of the Electronic Frontier Foundation (EFF).

Earlier this month, UMG filed a baseless copyright notice regarding a recent episode of “Vent with Michelle Malkin” — an irreverent daily video podcast produced by Malkin’s conservative Internet broadcast network “Hot Air.” In the video posted on YouTube, Malkin called Universal hip hop artist Akon a “misogynist,” supporting her criticism with excerpts from Akon’s music videos as well as onstage video footage showing Akon with a teenage girl at a nightclub in Trinidad.

Despite Malkin’s legally protected fair use of the Akon footage to support her criticism, UMG claimed that the podcast infringed its copyright. UMG submitted a takedown notice under the Digital Millennium Copyright Act (DMCA), forcing YouTube to pull the episode down. However, with EFF’s assistance, Malkin filed a counter-notice with YouTube, informing the company that she was legally entitled to distribute her video. As a result, the video is back up on the site, one that has become an important forum for political speech of all kinds.

“We’re pleased that UMG has backed off its bogus copyright claim and stopped squelching Michelle Malkin’s video criticism,” said EFF Senior Staff Attorney Kurt Opsahl. “However, it remains inexcusable. UMG’s misuse of federal law made the video unavailable on YouTube for a full week, denying the Hot Air podcast access to YouTube’s extensive audience during a time when the controversy about Akon’s behavior was all over the news.”

After UMG rescinded its takedown request, YouTube briefly continued to block access to the video podcast, claiming it included a “terms of use” violation. However, after EFF contacted YouTube to discuss the alleged violation, the video was quickly returned to public view.

“My Hot Air staff and I are grateful for EFF’s invaluable aid in forcing UMG to retreat,” said Malkin. “Shame on any copyright holder who would attempt to use the DMCA to intimidate and silence critics. We hope YouTube and its corporate partners, like UMG, will think twice next time before yanking video commentary and criticism that clearly falls under fair use.”

If you are a podcaster or video content provider, and you think your work has been squelched by a DMCA-abusing entity, don’t take it lying down. Get informed and take action.

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

I don’t mind ‘fighting dirty’ if that’s what we have to do, but then we have to make a conscious decision to not criticize them anymore for artificially inflating their numbers to make their agenda look more acceptable than it is.

Furthermore, we must accept that the left has more morons with enough time on their hands for ‘important action alerts’ than we do, and we’d likely lose the pig-wrestling match.

Whew, now that this issue is behind them, EFF can get back to the very important work of crippling our national security by suing Verizon to stop them from working with the NSA to track down terrorists!

Too bad there are no other groups out there that could help HotAir and Michelle with this problem. I hope it didn’t distract EFF too much from their real work of taking down the government.

I have less of a problem with the EFF than others here. There is no question that they have a biased agenda, and I could wish that they more often chose to champion conservative victims; however, their function is, on balance, a noble one.

It is important to fight for individual and group rights when they are restricted. EFF is only anti-government to the extent that government intrudes improperly upon personal or corporate freedoms, and that is not a bad thing. And I believe that their decision to assist Michelle in this case, PRO BONO, indicates that their chief aim is freedom and fairness.

I disagree with EFF’s selection of cases to participate in, probably more than half of the time. I also think that defense attorneys are trying to set a criminal free more than half of the time. That doesn’t make what either is doing wrong.

Dear Mrs. Malkin,
I am curious as to whether you are actually on a first name basis with this Jacob, or if he is just being discourteous (or ignorant of courtesy) in addressing you by your first name. I was reared to address others by their first names only when they gave me permission to do so, or when we were friends or relatives. And sometimes even then titles were used in some situations. It seems to me to show a lack of respect as well as discourtesy.

I’m guessing the claim that HotAir violated copyright could have unfortunate implications for their own attempts to resist lawsuits filed by large multi-media conglomerates essentially accusing them of the same thing.

It shows they’re sensitive to infringement in some cases. I wouldn’t be surprised if you guys end up as a footnote in a future brief by Time Warner.

This is an unassisted triple play, since 1) they backed down, 2) the video is back up, and 3) you now have a well documented case proving that these people WILL abuse the law to support their own dubious political agenda. In any future contest, they will no longer possess ANY credibility (in the eyes of the courts/legal system).

I agree…but censorship is best dealt with in the legal arena. Doesn’t a legal smackdown send a better message than a service saying ‘OK, I give up, give baby his bottle?’

Not really. It is incumbent on an aggrieved party to make a claim prior to filing a complaint in court. In this case, UMG knew they’d lose, so they caved. This is a legal smackdown, with a bad actor that knew they would get a beating in court.

Not really. It is incumbent on an aggrieved party to make a claim prior to filing a complaint in court. In this case, UMG knew they’d lose, so they caved. This is a legal smackdown, with a bad actor that knew they would get a beating in court.

Props to Michelle and EFF.

Pablo on May 15, 2007 at 8:27 AM

Right…you’re arguing my point. I said this is better than resorting to Diggbot tactics of shoving content in their faces over and over and over to get them to give up that way.

Nice! The DMCA is a horrid act that is frequently abused… it’s nice to see the underdog emerge victorious. This also nicely demonstrates that the EFF isn’t a “lefty” group. They are an electronic civil rights advocate. Free use is a right. Michelle’s rights were squashed under the guise of the DMCA, and they went to her rescue. I’ll be donating to them again this year.